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Calendar No. 5. 

^7th Congress,) SENATE. j Eeport 

1st Session, j ( No. 2. 



PEACE WITH GERMANY. 



April 25, 1921. — Ordered to be printed. 

Mr. Lodge, from the Committee on Foreign Relations, submitted the 

following 



2)-2^"i.^"i' 



REPORT. 

[To accompany S. J. Res. 16.] 



The Committee on Foreign Relations, to whom was referred Senate 
joint resolution 16, repealing the joint resolution of April 6, 1917, 
declaring a state of war to exist between the United States and Ger- 
many, and for other purposes, having had the same under considera- 
tion, report it with the recommendation that it do pass with the 
following amendment in the nature of a substitute redrafted by Mr. 
Knox. 

Strike out all after the resolving clause and substitute the following : 

That the joint resolution of Congress passed April 6, 1917, declaring a state of war to 
exist between the Imperial German Government and the Government and people of the 
United States of America, and making provisions to prosecute the same, he, and the some 
is hereby, repealed, and said state of war is hereby declared at an end. 

That aU property of the Imperial German Government, or its successor or successors, and 
of all German nationals which was, on April 6, 1917, in or has since that date come into 
the possession or under control of the Government of the United States of America or of 
any of its officers, agents, or employees, from any source or by any agency whatsoever, shall 
be retained by the United States of America and no disposition thereof made, except as shall 
have been heretofore or specifically hereafter shall be provided by Congress, until such time 
as the German Government has, by treaty with the United States of America, ratification 
ivhereof is to be made by and with the advice and consent of the Senate, made suitable pro- 
visions for the satisfaction of all claims against the German Government of all persons, 
ivheresoever domiciled, who owe permanent allegiance to the United States of America and 
who have suffered, through the acts of German Government or its agents since July SI. 1914, 
loss, damage, or injury to their persons or property, directly or indirectly, whether through 
the oivnership of shares of stock in German, American, or other corporations, or in conse- 
quence of hostilities or of any operations of war, or otherwise, and also provisions granting 
to persons owing permanent allegiance to the United States of America most-favored-nation 
treatment, whether the same be national or othenvise, in all matters affecting resilience, busi- 
ness, profession, trade, navigation, commerce, and industrial property rights, and con- 
firming to the United States of America all fines, forfeitures, penalties, and seizures im- 
posed or made by the United States of Am,erica during the war, whether in respect to the 
property of the German Government or German nationals, and waiving any and all pecu- 
niary claims based on events which occurred at any time before the corning into force of such 
treaty, any existing treaty between the United States of America and Germany to the con- 
trary notwithstanding. 



2 PEACE WITH GERMANY. 

That until by treaty or act or joint resolution of Congress it shall be determined otherwise, 
the United States of Amenca, although it has not ratified the treaty of Versailles, reserves 
for itself and its nationals all of the rights, powers, claims, privileges, indemyiities, repara- 
tions, or advantages to which it and its nationals are or may become entitled, together 
with the right to enforce the sam,e, under the terms of the armistice signed November 11, 
191S, or any extensions or modifications thereof or o'theruise, or zvhich under the treaty of 
Versailles have been stipulated for its benefit, or for the benefit of its nationals, with the 
same force and effect as if said treaty of Versailles had been ratified by the United States of 
America, and to which the United States of America is or may become entitled «s one of 
the principal allied and associated powers. 

That the joint resolution of Congress approved December 7 , 1917, declaring that "a state 
of ivar exists between the Imperial and Royal Austro- Hungarian Government and the 
Government and the people of the United States of America and making provisions to 
prosecute the same, " be, and the same is hereby, repealed, and said state of war is hereby 
declared at an end. 

That all property of the Imperial and Royal Austro- Hungarian Government, or its 
successor or successors, and of all nationals of the Austrian Empire or the Kingdom of 
Hungary which was, on April 6, 1917 , in or has since that date come into the possession 
or under the control of the Government of the United States of America or of any of its 
officers, agents, or employees from any source or by any agency whatsoever, shall be retained 
by the United States of America and no disposition thereof made , except as shall have been 
heretofore or specifically hereafter shall be provided by Congress, until such tirne as the 
Austrian Government has by treaty with the United States of America, ratification whereof 
is to be made by and with the advice and consent of the Senate, made suitable provisions 
for the satisfaction of all claims against the Austrian Government of all persons, where- 
soever domiciled, ivho owe permanent allegiance to the United States of America, and 
who have suffered through the acts of the Austrian Government or its agents since .July 
31, 1914, loss, damage, or injury to their perso7is or property, directly or indirectly, ivhether 
through the otunership of shares of stock in Austrian, American, or other corp>orations, 
or in consequence of hostilities or of any operations of ivar or otherwise, and also pro- 
visions granting to persons owing permanent allegiance to the United States of America 
most favored nation treatment, whether the same be national or othenoise, in all matters 
affecting residence, business, profession, trade, navigation, commerce, and industrial 
property rights, and confirming to the United States of America all fines, forfeitures, 
penalties, and seizures imposed or made by the United States of America during the war,. 
whether in respect to the property of the Austrian Government or nationals of the Aus- 
trian Empire, and waiving any and all pecuniary claims based on events ivhich occurred 
at any time before the coming into force of such treaty, any existing treaty between the 
United States of America and Austria to the contrary notwithstanding . 

That until by treaty or Act or joint resolution of Congress it shall be determined other- 
wise, the United States of America, although it has not ratified the treaty of Saint Germain 
or the treaty of Trianon, reserves for itself and its nationals all of the rights, powers, claims, 
privileges, indemnities, reparations, or advantages to wMch it and its nationals are or 
may become entitled, together with the right to enforce the same under the terms of the armi- 
stice signed November 3, 1918, or any extensions or modifications thereof, or otherwise, or 
which under the treaty of Saint Germain or the treaty of Trianon have been stipulated for 
its benefits or for the benefit of its nationals with the same force and effect as if said treaty of 
Saint Germain and the treaty of Trianon had been ratified by the United States of America, 
and to ivhich the United States of America is or may become entitled as one of the principal 
allied and associated powers. 

Amend the title so as to read as follows: 

"Repealing the joint resolution of April 6, 1917, declaring a state 
of war to exist between the United vStates and Germany, and the 
joint resolution of December 7, 1917, declaring a state of war to exist 
between the United States and the Imperial and Royal Austro- 
Hungarian Government, and for other purposes." 



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.^MtMAMOosinMor, 



LIBRARY OF CONGRESS 

MAY -21921 



Calendar No, 5. 

erxH Congress,) SENATE. j Kept. 2, 

1st Session. | i { Part 2. 



I J 






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PEACE WITH GERMANY. 



-c\^'^^ 



April 28 (calendar day, April 29), 1921. — Ordered to be printed. 



Mr. PoMERENE, from the Committee on Foreign Relations, submitted 

the following 

VIEWS OF THE MINORITY. 

[To accompany S. J. Res. 16.] 

It is with the deepest regret that we find ourselves unable to agree 
with the majority. 

We concur whole-heartedly in the desire of the country for peace at 
the earliest practicable moment, and we shall be glad to join with 
the majority in any measure looking to that end, provided it is 
formed along lines which are sound both from a domestic and an 
international viewpoint. 

Our belief is that the method provided in the pending resolution 
will prove a disappointment. to its friends and is fraught with untold 
difficulties. 

Broadly speaking, the resolution is composed of three parts: 

First. It repeals the joint resolutions declaring a state of war to 
exist between the United States and the Imperial German Govern- 
ment and the United States and the Imperial and Royal Austro- 
Hungarian Government, and it recites the ''said state of war is 
hereby declared at an end." 

Second. The pending resolution provides also that all property of 
these enemy Governments or their successors and their nationals now 
in the possession or under the control of the United States or its 
representatives shall be retained by the United States and no dispo- 
sition thereof made except by special act of Congress — 

(a) Until such time as these Governments, by treaty with the 
United States duly ratified, shall make suitable provision for the sat- 
isfaction of all claims of all persons owing permanent allegiance to 
the United States who have suffered directly or indirectly tln'ough 
the enemy Governments or their agents since the several declarations 
of war. 

(6) And until provisions shall be made by treaty granting to all 
persons owing permanent allegiance to the United States most- 
lavored-nation treatment in all matters affecting residence, business, 



2 PEACE WITH GERMANY. 

profession, trade, navigation, commerce, and industrial property 
rights. 

(c) And until they shall confirm to the United States of America 
all fines, forfeitures, penalties, and seizures imposed or made by the 
United States of America. 

(d) Until they shall waive any and all pecuniary claims based on 
events which occurred at any time before the coming into force of 
such treaty, any existing treaty between the United States of America 
and Germany to the contrary notwithstanding. 

Third. The resolution purports to reserve to the United States 
and its nationals all the rights, powers, claims, privileges, indemnities, 
reparations, or advantages to which it or its nationals are or may 
become entitled by the treaty of Versailles, although it has not been 
ratified by the United States, under the several armistices, or their 
extensions, or modifications, or which under the treaty of Versailles 
have been stipulated for its benefit or the benefit of its nationals with 
the same force and effect as if the said treaty of Versailles had been 
ratified by the United States. 

We submit that this is an attempt by act of Congress to usurp the 
treaty-making power of the President and the Senate. A similar 
resolution was passed by the Congress and vetoed by the President 
during the last session of the Sixty-sixth Congress. The excuse given 
for its enactment at that time was the failure of the President and 
the Senate to agree as to the terms of the ratification of the Versailles 
treaty. That same excuse does not exist now. The President and 
the majority of the Senate are in party accord. 

This is the first attempt in the history of our country to circumvent 
the treaty-making power. 

Congress is given the power to declare war, to raise and support 
armies, to provide and maintain a navy, to make rules for the govern- 
ment and regulation of land and naval forces, to call out the militia, 
and to provide for the organizing and disciplining of the militia, and 
to make all laws necessary and proper to carry into execution the 
foregoing powers. 

The President is the Commander in Chief of the Army and the 
Navy. Under the Articles of Confederation the Congress was given 
"the sole and exclusive right and power of determining on peace and 
war." Not so under the Constitution. Nowhere does it vest the 
peace-making power in the Congress, and we think it was purposely 
omitted by the constitutional fathers. An examination of the debates 
in the Constitutional Convention shows that in the early draft of the 
Constitution Congress was given the power " to make war." During 
the discussion it was said that the power to "make war" included 
the power to "wage war," and it was thought unwise to place the 
power to wage war in a body so numerous as the Congress, and so 
the convention substituted the words "declare war" for the words 
"make war." Later one of the delegates, Mr. Butler, rose and moved 
to add the words "and peace" after the word "war," so that the 
provision would read " to declare war and peace." If the Constitu- 
tion had so read, then there could be no question about the power of 
Congress to declare peace, but, strange to say, this amendment was 
unanimously defeated, and the power conferred upon the Congress 
was simply to "declare war." 



PEACE WITH GERMANY. 3 

We do not mean to say that because the words "and peace" were 
not added after the words ''to declare war" it necessarily deprives 
the Congress of the power to declare peace if the Constitution either 
expressly or impliedly otherwise provided, but we do claim that it 
is strong evidence it was intended not to confer this power on the 
Congress. 

The power is conferred upon the President ''by and with the advice 
and consent of the Senate to make treaties, provided two-thirds of 
the Senators present agree." This power is all-comprehensive. 
There are no limitations upon it or exceptions to it. It is the usual 
way by which peace and commerce treaties or conventions with other 
powers are made, and there is no sound reason why this method 
should not be pursued now. 

In order that we may ascertain the exact legal effect of this resolu- 
tion let us examine the phrasing of the German war resolution. It 
does not declare war against Germany. It reads: "The state of 
-^^ar * * * jg hereby formally declared." In other words, there 
was war between the United States and the Imperial German Gov- 
ernment before it was passed. Congress only declared the state of 
war to exist. When we repeal this resolution Congress does not 
thereby end the war, if war exists, it only repeals the statement or 
declaration that there was a state of war. And w^hen the pending 
resolution recites " the state of war is hereby declared to be at an 
end," if the war is not at an end, the resolution does not end it. 
If it is at an end, then the declaration by the Congress to that effect 
adds nothing to the state of peace, except in a very technical, legal 
sense. 

But the repeal of these resolutions will affect our commerce. 
During the war commerce with Germany and Austro-Hungary was 
suspended. 

On July 14, 1919, the War Trade Board Section of the State 
Department issued a license permitting communication and trade 
with "persons residing in Germany" subject, however, to the fol- 
lowing special limitations and exceptions, to wit : 

(1) The above-mentioned general license does not authorize the importation into 
the United States from Germany or elsewhere of dyes, dyestuffs, potash, drugs, or 
chemicals which have been produced or manufactured in (jrermany. 

(2) The above-mentioned general license does not modify or affect in any respect 
present restrictions against trade and communication between the United States and 
Hungary or that portion of Russia under the control of the bolshevik authorities. 

(3) The above-mentioned general license does not authorize trade with respect to 
any property which heretofore, pursuant to the provisions of the trading with the 
enemy act as amended, has been reported to the Alien Property Custodian or should 
have been so reported to him, or any property which heretofore, pursuant to the pro- 
visions of said act, the Alien Property Custodian has seized or has required to be 
conveyed, transferred, assigned, delivered, or paid over to him. 

Exports to and imports from Germany may take place under Special Export License 
RAC No. 77, and General Import License PBF No. 37, as announced in W. T. B. R. 
803 and W. T. B. R. 804, respectively. 

These restrictions have since been modified so far as they relate 
to the importation of potash from Germany, and so far as they relate 
to trading with Hungary and Russia. 

EFFECT OF REPEAL OF WAR RESOLUTION. 

We seized property in this country and on the high seas belonging 
to the German Government and her nationals, including German 



4 PEACE WITH GERMANY. 

ships which had sought refuge in our ports from the allied fleets. 
Our authority to do this was by virtue of this declaration of war 
and subsequent legislation. The seizures were made by our military, 
naval, and civilian forces. 

Germany likewise took possession of property of the United States 
and its nationals then in its territory. Its Navy seized our property 
on the high seas. Such property as it did not destroy it still has 
in its possession and control. By the passage of the pending resolu- 
tion we are repealing the very resolutions which were the authority 
for our acts and under which we took possession of this property, 
and we are doing it without any consideration moving to us therefor. 

True, the resolutions recite that we are going to keep the property 
we thus seized, except such as may be released by act of Congress, 
until a treaty shall be ratified which shall provide for the disposition 
of this property and the settlement of all olaims which our Govern- 
ment or our nationals may have against the German Government 
growing out of this war. And then, as if to add emphasis, the resolu- 
tion declares that we reserve ''all the rights, powers, claims, privileges, 
indemnities, reparations, or advantages provided for in the Versailles 
treaty to which we would be entitled if we had ratified it." 

While considering the effect of the passing of the pending resolution, 
let us keep in mind that our treaty of 1799 with Prussia, which was 
revived by the treaty of 1828, expressly provides in article 23 : 

If war should arise between the two contracting parties, the merchants of either 
coimtry then residing in the other shall be allowed to remain nine months to collect 
their debts and settle their affairs, and may depart freely, carrying off all their effects 
without molesta*^ion or hindrance; and all women and children, scholars of every 
faculty, cultivators of the earth, artisans, manufactirers, and fishermen, unarmed 
and inhabiting imfortified towns, A'illages, or places, and in general all others whose 
occupations are for the common subsistence and benefit of mankind, shall be allowed 
to continxie their respective employments, and shall not be molested in their persons 
nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted 
by th3 armed force of the enemy, into whose power by the events of war they may 
happen to fall: biit if anything is necessary to be taken from them for the use of such 
armed force, the same shall be paid for at a reasonable price. 

And this last treaty significantly and formally declares it to be 
''equally beneficial to both countries" and ''applicable in time of 
peace as well as in time of war." 

We submit that the enactment of the pending resolution will result: 

(1) In removing unconditionally all war restrictions with respect to 
our trade v»^ith Germany and Austria-Hungary, and will restore all 
commerce as heretofore. Of course, this is an end to be desired by 
Americans as well as Germans, but it will prove of infinitely more 
importance to Germany to get into our markets than it will for 
America to get into German markets. In our judgment, while we 
desire commercial relations, we should first determine the terms and 
conditions upon which we shall renew them before we let down the 
bars unconditionally. We owe this duty to the American people. 

(2) In consideration for this unconditional repeal of the war 
resolutions we receive no compensating return. True, the resolution 
recites that we shall retain the property already seized hy our forces, 
including ships in our ports, until all claims of indemnity by our 
Government or our nationals are settled by treaty, to the same 
extent that we could if we had ratified the Versailles treaty. But 
we assert that these reservations add nothinsr to our title or to our 



PEACE WITH GERMANY. 5 

•security. They do nothing more than serve notice upon the German 
Government as to what our position will be with respect to this 
property. Let it be borne in mind that the Versailles treaty is only 
binding upon those powers which have exchanged ratification, and 
unless we do ratify that treaty, Germany is not bound thereby to 
satisfy the claims of our Government or our nationals. 

(3) The repeal of the war resolution will only serve to strengthen 
Germany's claim that the seizure by our forces of the property of 
Germany and of German nationals, including the ships in our ports, 
w^as unlawful and in violation of our treaties of 1799 and 1828 with 
Prussia, to which reference has been made. 

(4) By the repeal of the resolution we leave Germany in possession 
of all the property belonging to the United States or to our nationals 
which was seized and confiscated by it on German territory or upon 
the high seas, without any obligation on its part to give compensation 
therefor. 

(5) We can not by this legislation either persuade or compel 
Germany to reciprocate by similar legislation, and the only way 
known to the law to settle these questions between Germany and 
ourselves is either by treaty negotiations or by force of arms. 

(6) Germany has shown no disposition to make settlement with 
any of our allies, or with ourselves, on an equitable basis for the dam- 
ages it has wTought. Why, then, should we voluntarily repeal this 
resolution — the thing Germany desires above everything else — and 
leave all other matters to be hereafter adjusted according to Ger- 
many's own sweet will? Now the United States Government has 
the advantage. The majority, as evidenced by their report, if this 
legislation is passed, will voluntarily surrender it and give it to 
Germany. 

(7) We conclude, therefore, that if the administration is not willing 
to ratify the Versailles treaty with such reservations and upon such 
terms and conditions as will secure to the United States and its 
nationals all of the rights and privileges which are provided for them 
under the Versailles treaty, then we suggest that before this resolution 
is passed we request the President, through the State Department, to 
■enter into communication with the German Government, and nego- 
tiate a treaty by which it will agree to adjust all differences fairly to 
it, ourselves, and our associates and allies, along the lines set out in 
the pending resolution. If Germany will not enter into a treaty along 
these lines while the resolution declaring a state of war is in effect, 
it will not do so when the resolution is repealed. If Germany does 
enter into such a treaty, we believe it will do so more expeditiously 
with this war resolution on our statute books than if it is repealed. 
Nothing can be lost by this course. Much can be gained. In any 
event we will have the advantage thereby in our negotiations. 

These same observations in substance apply to the repeal of the 
resolution declaring^ a state of war with the Imperial and Royal 
Austro-Hungarian Government. 

G. M. Hitchcock. 

John Sharp Williams. 

Claude A. Swanson. 

Atlee Pomerene. 

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